Opinion
C/A No.: 1:19-1100-TMC-SVH
04-27-2020
Alandres L. Williams Heyward, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On June 24, 2008, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on July 17, 2002. Tr. at 351-65. Her applications were denied initially and upon reconsideration. Tr. at 190-91, 197-200. On May 6, 2009, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Peter C. Edison. Tr. at 108-32 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 19, 2010, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 144-59. On July 8, 2011, the Appeals Council vacated the decision and remanded the case for further proceedings. Tr. at 160-63.
On October 25, 2011, Plaintiff had a hearing before ALJ Thomas G. Henderson and amended her onset date to February 1, 2007. Tr. 84-107, 88, 396. The ALJ issued an unfavorable decision on December 29, 2011, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 165-84. On January 17, 2013, the Appeals Council vacated the decision and remanded the case for further proceedings. Tr. at 185-88.
On August 20, 2013, Plaintiff had another hearing before ALJ Henderson. Tr. 39-83. The ALJ issued an unfavorable decision on September 17, 2013, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 16-37. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought an action seeking judicial review of the Commissioner's decision in a complaint filed in the United States District Court for the Middle District of Florida. Tr. at 913-18. Following briefing, the Honorable Julie S. Snead, United States Magistrate Judge, issued a report and recommendation ("R&R") dated December 18, 2015, recommending the case be remanded for further administrative proceedings. Tr. 883-904. On January 8, 2016, the Honorable Elizabeth A. Kovachevich, United States District Judge, adopted the R&R, having received no objections. Tr. 880-82). The Appeals Council issued an order remanding the case on March 1, 2016. Tr. at 909-12). On March 9, 2017, Plaintiff had a fourth hearing before ALJ Peggy McFadden-Elmore. Tr. 760-95. The ALJ issued an unfavorable decision on September 20, 2017, finding that Plaintiff was not disabled within the meaning of the Act. 714-46. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 708-13. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 15, 2019. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the March 9, 2017 hearing. Tr. at 765. She completed two years of college. Tr. at 766. Her past relevant work ("PRW") was as an EMS dispatcher and a telemarketer. Tr. at 789. She alleges she has been unable to work since February 1, 2007. Tr. at 765.
2. Medical History
On February 24, 2006, Plaintiff presented to physical medicine and rehabilitation specialist G. Robert Richardson, III, M.D. ("Dr. Richardson"), for an independent medical evaluation regarding pain on the left side of her neck and in her low back and lower extremities. Tr. at 558. She reported her symptoms started following a car accident in 2002. Id. She described her low back pain as radiating to her buttocks and her neck pain as primarily on the left side and in the shoulders. Id. She stated her symptoms were worsened by bending forward and prolonged sitting and standing. Id. She indicated she had received some relief from epidural steroid injections ("ESIs"). Dr. Richardson noted 2004 cervical magnetic resonance imaging ("MRI") showed disc bulging at C4-5 and C5-6 and an October 2002 lumbar MRI showed a left-sided disc protrusion at L5-S1. Id. He observed Plaintiff to have normal tone and bulk on motor exam, 4+ to 5/5 strength, symmetrical reflexes, diffuse cervical and lumbar paraspinal tenderness with more pronounced spasm in the lumbar region, no long tract signs or sensory deficits, and limited lumbar range of motion ("ROM"), primarily with forward flexion secondary to pain. Id. His diagnostic impressions were (1) low back and bilateral lower extremity pain, secondary to lumbar radiculitis; (2) lumbar disc disruption at L5-S1; (3) neck pain possibly discogenic or myofascial/facetogenic pain; and (4) disc displacements at C4-5 and C5-6. Id. He recommended Plaintiff obtain an updated lumbar MRI and refilled prescriptions for Celebrex, Lortab, Zanaflex, Soma, and Remeron. Id.
On April 24, 2006, an MRI of Plaintiff's lumbar spine showed a large pelvic mass and a small intraforaminal disc herniation at L5-S1 on the left, containing an annular tear. Tr. at 556-57.
On May 15, 2006, Dr. Richardson informed Plaintiff the MRI showed some evidence of mild disc bulging at the L5-S1 level, as well as evidence of a left-sided annular tear. Tr. at 555. Plaintiff endorsed ongoing pain that was more pronounced in her low back than her neck. Id. Dr. Richardson recommended a lumbar ESI at the L5-S1 level and a trial of a muscle stimulator unit. Id.
On June 16, 2006, Plaintiff reported little improvement following the lumbar ESI. Tr. at 554. She indicated she had been more active at work and had noticed increased pain with prolonged sitting. Id. She complained of significant headaches. Id. Dr. Richardson prescribed Remeron and Cymbalta and recommended repeat ESI. Id. He administered another ESI at Plaintiff's L5-S1 level on June 26, 2006. Tr. at 553.
On July 17, 2006, Plaintiff reported no improvement from her most recent lumbar ESI. Tr. at 552. She indicated she had been unable to tolerate Cymbalta. Id. She reported trying to work, but stated the stress of the job was exacerbating her pain. Id. Dr. Richardson noted he would keep Plaintiff out of work. Id. He provided information to Plaintiff about discogram and recommended she consider it. Id.
Plaintiff complained of increased low back pain radiating to the lower extremities on August 28, 2006. Tr. at 551. Dr. Richardson again suggested discogram and Plaintiff expressed a desire to proceed with it. Id.
On November 13, 2006, Plaintiff reported increased low back pain, following abdominal surgery. Tr. at 550. She indicated she had been using a muscle stimulator unit with some relief. Id. Dr. Richardson indicated he would schedule Plaintiff for a lumbar discogram. Id.
On December 7, 2006, a computed tomography ("CT") scan of Plaintiff's lumbar spine showed mild internal disc disruption and a moderately-large penetrating left foraminal annular tear associated with a shallow-based protrusion at the L5-S1 level. Tr. at 549. It indicated minimal facet arthrosis at L4-5 and L5-S1. Id.
Plaintiff followed up with Dr. Richardson to discuss the results of the lumbar discogram on December 15, 2006. Tr. at 548. Dr. Richardson explained the discogram showed evidence of an annular tear with discogenic pain at the L5-S1 level. Id. He discussed options including artificial disc replacement versus annuloplasty and intradiscal electrothermal therapy ("IDET") procedure. Id. Plaintiff requested a repeat ESI and indicated she would consider the other treatment options. Id.
Dr. Richardson administered a lumbar ESI at Plaintiff's L5-S1 level on December 18, 2006. Tr. at 547.
On January 17, 2007, Plaintiff reported limited relief from the lumbar ESI and complained of significant low back pain. Tr. at 546. She desired to go forward with an IDET procedure, and Dr. Richardson indicated he would schedule it. Id.
On January 23, 2007, Dr. Richardson initiated the IDET procedure at Plaintiff's L5-S1 level. Tr. at 544. He was forced to abort the procedure after being unable to place a catheter along the posterior disc wall secondary to the size of the annular tear. Tr. at 545.
Plaintiff presented to spinal orthopedic surgeon Steven C. Poletti, M.D. ("Dr. Poletti"), for a surgical evaluation on February 5, 2007. Tr. at 543. She described her pain as moderately-severe and interfering with activities of daily living ("ADLs"). Id. Dr. Poletti noted Plaintiff's treatment history. Id. He observed limited ROM in Plaintiff's back, positive straight-leg raising ("SLR") test, and subjective dysesthesia in the posterior aspect of her legs. Id. He noted Plaintiff's MRI showed annular tearing in the left lateral recess at the L5-S1 level and relatively-maintained disc space height. Id. He stated discogram showed L5-S1 to be the generator of Plaintiff's pain. Id. He assessed disc disruption at L5-S1. Id. He stated Plaintiff was a potential candidate for discectomy and interbody fusion versus disc replacement. Id. However, he noted Plaintiff could continue to experience significant pain even if she proceeded with surgery. Id. Dr. Poletti encouraged Plaintiff to continue treatment with injections and therapy and to consider surgery as a last resort. Id.
On March 5, 2007, Dr. Richardson refilled Lortab, Remeron, and Soma and indicated he would repeat injections as needed. Tr. at 542. He administered a lumbar ESI at L5-S1 on April 13, 2007. Tr. at 540.
On May 4, 2007, Plaintiff reported some improvement following lumbar ESI. Tr. at 538. However, she endorsed more severe headaches that were unrelieved by medication. Id. Dr. Richardson continued Plaintiff's medications and referred her to a neurologist for evaluation of headaches. Id. He administered ESIs at L5-S1 on August 22, 2007, and November 12, 2007. Tr. at 536, 537.
On February 5, 2008, Dr. Richardson provided a status report indicating Plaintiff was unable to work because of her spine condition. Tr. at 535. He administered a lumbar ESI on March 5, 2008. Tr. at 534.
On March 31, 2008, Plaintiff reported no improvement following the lumbar ESI. Tr. at 532. She described low back pain with some radiation to the buttocks that was no longer alleviated by Lortab. Id. Dr. Richardson noted normal motor strength, diffuse lumbar paraspinal tenderness and spasm, and no focal motor or sensory deficits. Id. He referred Plaintiff for an updated lumbar MRI. Id.
On April 4, 2008, an MRI of Plaintiff's lumbar spine was within normal limits, demonstrating a normal distal thoracic spine, no evidence of disc herniation or protrusion, and no evidence of nerve root compression. Tr. at 530-31.
Plaintiff presented to Dr. Poletti for a surgical consultation on April 15, 2008. Tr. at 529. She endorsed significant pain in her low back, buttocks, hips, and legs. Id. Dr. Poletti noted Plaintiff's MRI was "unremarkable in terms of any true disc herniation," but indicated discogram had confirmed the presence of annular fissuring at the L5-S1 level. Id. He noted negative SLR test. Id. He did not consider Plaintiff a surgical candidate as discectomy and interbody fusion were contraindicated. Id. He indicated annuloplasty and IDET could provide some benefit, but may be unpredictable. Id. Dr.
On May 16, 2008, Dr. Richardson discussed treatment options with Plaintiff and recommended a referral to pain management specialist Mark D. Netherton, M.D. ("Dr. Netherton"), for consideration of a dorsal column stimulator. Tr. at 528. He continued Plaintiff's medications, but noted Lyrica was causing too much drowsiness if she took it during the day. Id.
Plaintiff presented to Dr. Netherton for an initial consultation on August 7, 2008. Tr. at 560-62. She described dull, aching, throbbing, sharp, stabbing, and burning low back pain that radiated into her buttocks and upper legs. Tr. at 560. She indicated her pain was worsened by bending, prolonged standing, and weather events. Id. She rated her pain as a 10 of 10 at worst and a two of 10 at best. Id. She indicated her pain affected her sleep, appetite, physical activity, concentration, emotions, and social relationships. Id. She noted she had received multiple nerve blocks and ESIs, had participated in physical therapy, and had used a muscle stimulator unit and pain medications with some benefit, but without complete pain relief. Id. Plaintiff endorsed aches and pains across her low back and into her hips, joint stiffness in the bilateral hips, occasional knee stiffness, regular headaches, and gastric reflux. Tr. at 561. Dr. Netherton observed Plaintiff to be in no apparent distress and noted the following on physical exam: normal ROM, strength, and sensation in the bilateral upper extremities; normal axial spine musculature through the cervical and thoracic areas; diffuse tenderness in the low back area, lumbar site, around the beltline, and downward into the sacral area with flexion and extension; some tenderness in the quadratus lumborum muscles; positive SLR bilaterally at greater than 60 degrees with radiation of pain in the L4-5 and L5-S1 distribution to just above the knees; normal strength and sensation in the lower extremities at 5/5 with dorsiflexion and plantar flexion; and normal sympathetic function. Id. His impressions were lumbar plexus disorder and lumbar degenerative disc disease ("DDD"). Id. He provided Plaintiff a booklet describing spinal neurostimulation and indicated they would proceed with a trial of tripole neurostimulation in the future. Tr. at 562.
Plaintiff presented to family practitioner Adebola Rojugbokan, M.D. ("Dr. Rojugbokan"), for a consultative examination on October 8, 2008. Tr. at 564-68. She endorsed occasional weakness and headaches. Tr. at 565-67. Dr. Rojugbokan described Plaintiff as being in no acute distress, 5'3" tall, and weighing 211 pounds. Tr. at 567. He noted the following on physical exam: no cyanosis; no clubbing; equal palpable pulses in all extremities; pain on palpation of the lower back area, markedly decreased ROM in the lower back; difficulty squatting; difficulty walking in a straight line; normal SLR testing; normal finger-to-nose, heel-to-toe, and heel-to-shin testing; equal 2+ deep tendon reflexes ("DTRs") bilaterally; and sensation intact to light touch, pinprick, and proprioception. Tr. at 567-68. He assessed low back pain, osteoarthritis, history of migraine headache, and status post-motor vehicle accident. Tr. at 568. He stated Plaintiff was "capable of walking, listening, seeing, hearing, and reasoning." Id. He noted Plaintiff wore a back brace and would likely benefit from an orthopedic evaluation and a back x-ray or MRI. Id.
On November 4, 2008, state agency medical consultant William Hopkins, M.D. ("Dr. Hopkins"), reviewed the record and completed a physical residual functional capacity ("RFC") assessment. Tr. at 569-76. He indicated Plaintiff had the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently balance; occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; and avoid concentrated exposure to hazards. Id.
On November 18, 2008, Plaintiff reported improvement following her most recent injection. Tr. at 593. V. G. Blease, PA-C ("PA Blease"), a physician assistant Dr. Netherton supervised, observed negative bilateral SLR, grossly intact cranial nerves, 5/5 lower extremity strength, and normal tone. Id. She increased Plaintiff's Lyrica dose to 100 mg twice a day and indicated she continued to wait for a stimulator trial. Id.
On January 13, 2009, Plaintiff complained of right foot numbness and increased pain. Tr. at 592. She indicated she had been involved in a car accident on December 28 and had visited the emergency room on December 29. Id. PA Blease observed negative SLR, intact dorsiflexion and plantar flexion, grossly intact neurological exam, 1+ DTRs, 5/5 lower extremity strength, normal tone, and antalgic gait. Id. She increased Lyrica to 150 mg twice a day. Id.
On March 10, 2009, Plaintiff reported she was unable to sleep for more than two hours at a time. Tr. at 591. She indicated she was unable to tolerate Lyrica because of a rash. Id. PA Blease noted negative SLR test, intact dorsiflexion and plantar flexion, 5/5 lower extremity strength, normal tone, and antalgic gait. Id. She continued Plaintiff's medications, prescribed Ambien for sleep, and indicated Plaintiff should be scheduled for a lumbar ESI at L5-S1 as soon as possible. Id.
Dr. Netherton administered an ESI at Plaintiff's L5-S1 level on March 13, 2009. Tr. at 617.
On June 1, 2009, Plaintiff described dull, sharp, aching, and shooting pain in her low back that she rated as a four. Tr. at 660. She indicated her pain was worsened by changes in weather and increased activity. Id. Suzanne E. Livengood, PA-C ("PA Livengood"), another physician assistant Dr. Netherton supervised, observed Plaintiff to ambulate with an antalgic gait, but to have 5/5 lower extremity strength, negative SLR, and intact dorsiflexion and plantar flexion. Id. She scheduled Plaintiff for an L5-S1 ESI. Id.
Dr. Netherton administered an ESI at Plaintiff's L5-S1 level on June 15, 2009. Tr. at 626.
On August 20, 2009, Plaintiff reported some flare-ups, but generally rated her pain as a three-to-four. Tr. at 659. She indicated her medications reduced her pain. Id. PA Livengood noted intact dorsiflexion and plantar flexion, negative SLR, 5/5 lower extremity strength, and antalgic gait. Id.
On November 16, 2009, Plaintiff complained of lower back pain and spasms she rated as a four-to-five. Tr. at 658. She indicated an ESI in September had provided only a couple weeks of relief. Id. She reported sometimes taking three Fiorinal per day for headaches. Id. PA Livengood noted normal tone, grossly intact motor functioning, and antalgic gait. Id. She continued Plaintiff's medications and recommended an ESI at L5-S1 in late December. Id.
The record does not contain a report for a September 2009 ESI.
Dr. Netherton administered an ESI at Plaintiff's L5-S1 level on December 21, 2009. Tr. at 625.
Plaintiff described pain in her lower back, thighs, and legs as throbbing and rated it as a seven on February 8, 2010. Tr. at 656. She reported no significant relief from her most recent lumbar ESI. Id. She indicated that soon after receiving the ESI, she sustained a fall and lost consciousness. Id. PA Livengood observed Plaintiff to ambulate with an antalgic gait, to have 4/5 lower extremity musculoskeletal strength, to have intact tone and motor skills, to demonstrate intact dorsiflexion and plantar flexion, to have negative SLR, and to be using a corset back brace. Id. She continued Plaintiff's other medications and offered a prescription for Magnesium Oxide that Plaintiff declined based on a conversation with her pharmacist. Id. Plaintiff indicated a continued desire for a spinal stimulator trial, but indicated she was awaiting her attorney's approval. Id.
It appears from the record that Plaintiff's attorney had guaranteed payment for some of her medical treatment, but that he declined to guarantee payment for an evaluation and spinal cord stimulator trial. See Tr. at 592 ("still awaiting attorney to pay for stim & [] eval").
On May 3, 2010, Plaintiff described shooting, burning, and throbbing pain in her back, thighs, and legs that she rated as a 10. Tr. at 653. She reported increased stressors and having sustained three falls within the prior month. Id. PA Livengood noted antalgic gait, use of a corset back brace, overweight appearance, 4/5 musculoskeletal strength in the lower extremities, intact dorsiflexion and plantar flexion, negative bilateral SLR, and 1+ patellar tendon reflexes ("PTRs"). Id. She recommended ESI at the L5-S1 level and advised Plaintiff to take Zantac for epigastric burning. Id. She indicated Plaintiff continued to wait for approval for a spinal stimulator. Id.
On July 26, 2010, Plaintiff complained of "horrible" pain in her back, thighs, and legs. Tr. at 650. She described her pain as sharp and throbbing, "like a toothache," and rated it as an eight-to-nine. Id. She indicated it was worsened with activity and reduced by medications and use of a brace. Id. She reported new onset of left heel pain that was exacerbated by walking. Id. She endorsed increased anxiety and felt as if she might be experiencing panic attacks. Id. PA Livengood observed antalgic gait, 4/5 musculoskeletal strength in the lower extremities, intact dorsiflexion and plantar flexion, negative bilateral SLR, and 1+ PTRs. Id. She prescribed a Medrol Dosepak, continued Plaintiff's other medications, and scheduled Plaintiff for an ESI at the L5-S1 level. Id.
Dr. Netherton administered an ESI at Plaintiff's L5-S1 level on August 13, 2010. Tr. at 624.
On October 20, 2010, Plaintiff reported headaches and pain in her lower back, thighs, and legs. Tr. at 646. She indicated her pain was particularly severe during the visit, rating it as a 10. Id. She described her pain as exacerbated by standing and reduced by use of medication and a brace. Id. She indicated her most recent ESI provided relief for about a month. Id. PA Livengood noted antalgic gait, 5/5 strength in the upper and lower extremities, intact dorsiflexion and plantar flexion, negative bilateral SLR, 1+ PTRs, and 1+ brachioradialis tendon reflexes. Id. She referred Plaintiff for a new lumbar MRI without contrast. Tr. at 647.
Plaintiff underwent another MRI of the lumbar spine on November 2, 2010, after complaining of increased numbness in her left foot over the prior four-month period. Tr. at 628. It showed mild, noncompressive spondylosis. Id.
Plaintiff reported headaches and pain in her lower back, thighs, and legs on November 19, 2010. Tr. at 643. She described her pain as dull and aching and rated it as a four. Id. She stated it was exacerbated by standing and improved by medication. Id. PA Livengood observed antalgic gait, 5/5 strength in the lower extremities, intact dorsiflexion and plantar flexion, negative SLR, and 1+ PTRs. Id. She noted Plaintiff used a back brace as needed. Id. She recommended medial branch blocks at the L4-5 and L5-S1 levels to determine whether Plaintiff would benefit from rhizotomy. Id.
On January 17, 2011, Dr. Netherton administered bilateral medial branch blocks at Plaintiff's L4, L5, and S1 levels. Tr. at 623.
On January 26, 2011, Plaintiff reported having received 40-50% pain relief from the medial branch blocks. Tr. at 640. She described dull pain in her back, legs, and thighs that she rated as a two-to-three. Id. She stated it was worsened by standing and improved by medication. Id. PA Livengood described Plaintiff as having an antalgic gait, 5/5 strength in the lower extremities, intact plantar flexion and dorsiflexion, and negative SLR. Id. She recommended proceeding with medial branch rhizotomy, discontinued Lortab, and prescribed Nucynta. Id.
Dr. Netherton performed radiofrequency rhizotomy at Plaintiff's bilateral L4, L5, and S1 levels on February 14, 2011. Tr. at 622.
On February 24, 2011, Plaintiff reported having sustained a fall on the prior Sunday. Tr. at 637. She complained of aching pain in her neck and lower back that she rated as an eight. Id. She also reported a headache that had lasted for three days. Id. PA Blease noted 5/5 strength in Plaintiff's lower extremities, intact dorsiflexion and plantar flexion, negative bilateral SLR, normal muscle tone, and antalgic gait. Id. She administered a Toradol injection and refilled Lortab and Ambien. Id.
On March 31, 2011, Plaintiff complained of pain in her lower back and occasional shooting pain in her legs. Tr. at 634. She reported recent onset of right hand swelling and piercing pain in her left foot that occurred only in the morning. Id. She endorsed headaches. Id. She indicated rhizotomy provided some relief. Id. PA Blease noted 5/5 strength in the lower extremities, intact dorsiflexion and plantar flexion, good grip strength, and 1+ reflexes in the upper extremities, normal muscle tone, and antalgic gait. Id. She permitted Plaintiff to fill her prescription for Lortab early, as she was scheduled to take a trip to visit her father. Id. She added Cymbalta and Celebrex and ordered electromyography and nerve conduction studies of the bilateral lower extremities. Id.
Plaintiff complained of increased stress, headaches, insomnia, lower back pain, and burning in her feet on May 10, 2011. Tr. at 630. She described burning pain and spasms that worsened with standing and cooking and improved with medication, heat, and hot showers. Id. She stated she did not like how Ambien made her feel. Id. She indicated her transcutaneous electrical nerve stimulation ("TENS") unit was no longer working. Tr. at 632. PA Blease noted grossly intact motor skills and muscle tone, antalgic gait, and grossly intact cranial nerves. Tr. at 630. She continued Lortab, prescribed Elavil for insomnia, and provided samples of Cymbalta. Tr. at 631. A urine drug screen was negative for Plaintiff's prescribed medication, but positive for Oxycodone, which had not been prescribed. Tr. at 662. PA Blease indicated she would need to discuss the results with Plaintiff. Id.
On August 30, 2011, Plaintiff complained she had sustained a "nasty fall" at a gas station. Tr. at 704. She endorsed spasms and shooting-type pain. Id. PA Blease noted 5/5 bilateral lower extremity strength, intact dorsiflexion and plantar flexion, negative bilateral SLR, 1+ lower extremity reflexes, normal muscle tone, and antalgic gait. Id. She continued Plaintiff's medications and recommended a lumbar ESI at L4-5. Id.
On October 16, 2011, Dr. Netherton completed a spinal impairment questionnaire, which is set forth in greater detail below. Tr. at 503-11.
Plaintiff presented to Dr. Rojugbokan for a second consultative exam on November 16, 2011. Tr. at 675-80. Dr. Rojugbokan observed the following on examination of the cervical spine: no swelling; pain on palpation; no increased heat or redness; no audible or palpable crepitus; no malalignment of the articulating bones; no muscular atrophy; no subcutaneous nodules; no skin changes; and diminished muscular strength and ROM because of headache. Tr. at 677. He indicated cervical flexion to 40/50 degrees, extension to 60/60 degrees, lateral flexion to 40/45 degrees, and rotation to 40/80 degrees. Tr. at 668. He noted the following on examination of the lumbar spine: no swelling, tenderness, redness, or increased heat on palpation; no audible or palpable crepitus; no malalignment of the articulating bone; no muscular atrophy; no subcutaneous nodules; no skin changes; and diminished muscle strength. Tr. at 678. Plaintiff demonstrated lumbar ROM of 80/90 degrees of flexion, 20/25 degrees of extension, and 20/25 degrees of lateral flexion. Tr. at 668. Dr. Rojugbokan indicated no abnormalities on examination of the shoulders, elbows, knees, ankles, and hands. Tr. at 678-79. He noted the following on inspection of Plaintiff's hips: no swelling; pain on bilateral palpation; no increased heat or redness on palpation; no crepitus; no malalignment; and diminished muscular strength and ROM. Tr. at 679. Plaintiff demonstrated the following on ROM testing of the hips: 20/40 degrees of abduction on the left; 40/40 degrees of abduction on the right; 20/20 degrees of adduction bilaterally; 80/100 degrees of internal rotation bilaterally; 20/40 of bilateral internal rotation; 40/50 degrees of external rotation bilaterally; 20/30 degrees of left extension; and 30/30 degrees of right extension. Tr. at 668. He indicated Plaintiff was able to squat and perform tandem and heel-to-toe walking. Tr. at 679. However, he stated Plaintiff walked with abnormal gait, tending to lean to the left side when she walked. Id. He stated Plaintiff had no marked muscle tenderness, no sensory loss, no joint abnormality, normal reflexes, and no muscular atrophy. Tr. at 679-80. Dr. Rojugbokan assessed back pain, history of concussion, migraine headaches, and osteoarthritis. Tr. at 680. He indicated Plaintiff was capable of walking, listening, seeing, hearing, reasoning, and managing her own funds. Id. He completed a questionnaire assessing specific work-related abilities and restrictions. Tr. at 670-74.
Plaintiff rated pain in her lower back and bilateral lower extremities as a 10 on November 28, 2011. Tr. at 701. She described it as "shooting and like fire and lightening" and indicated it was exacerbated by sitting and cold air. Id. She stated she was only sleeping for about two hours at night. Id. PA Blease observed Plaintiff to have 4/5 strength in her bilateral lower extremities, intact dorsiflexion and plantar flexion, negative bilateral SLR, 1+ reflexes in her bilateral lower extremities, normal muscle tone, and antalgic gait. Id. She increased Plaintiff's Lortab to 10 mg and prescribed Neurontin and a steroid. Tr. at 702.
On December 29, 2011, Plaintiff reported she had been unable to afford Neurontin and steroids, but filled prescriptions for Lortab and Ultram. Tr. at 699. She complained her attorney was not responding to her requests to fund her treatment. Id. PA Blease observed Plaintiff to have 5/5 lower extremity strength, intact dorsiflexion and plantar flexion, negative bilateral SLR, and antalgic gait. Id. She continued Plaintiff's other medications and added a prescription for Baclofen. Tr. at 700.
On January 13, 2012, Plaintiff complained of pain in her head and low back. Tr. at 698. She felt she needed an ESI, but indicated her attorney had not approved it. Id. She endorsed blurred vision, right eye problems, insomnia, migraines, and increased urination at night. Id. PA Livengood noted Plaintiff ambulated with an antalgic gait and had 4/5 musculoskeletal strength in the lower extremities, intact dorsiflexion and plantar flexion, and negative SLR. Id. She administered a Toradol injection. Id.
Plaintiff reported good and bad days on February 10, 2012. Tr. at 697. She rated her pain as a four-to-five. Id. She complained of spasms and indicated she had fallen in the grocery store on January 27. Id. She reported Baclofen was no longer effective. Id. PA Livengood observed antalgic gait, 4/5 musculoskeletal strength in Plaintiff's lower extremities, intact dorsiflexion and plantar flexion, and negative bilateral SLR. Id. She discontinued Baclofen, continued Lortab and Ultram, restarted Zanaflex 4 mg three times as a day, and increased Magnesium-Oxide 400 mg to twice a day. Id.
Plaintiff complained of feeling depressed on March 21, 2012. Tr. at 695. She reported pain in her low back that radiated through her right lateral thigh and into her knee. Id. She rated her pain as ranging from a three to a 10. Id. She endorsed morning stiffness and indicated her pain was worsened by standing, bending, and lifting. Id. She stated she had been unable to afford to refill Zanaflex and Magnesium-Oxide. Id. Kathleen Davis, PA-C ("PA Davis"), a physician assistant Dr. Netherton supervised, observed 5/5 lower extremity strength, intact dorsiflexion and plantar flexion, negative SLR, 1+ bilateral lower extremity reflexes, normal muscle tone, and antalgic gait. Id. She encouraged Plaintiff to follow up with her primary care physician for vision changes, depression, and urinary frequency. Id. She refilled Plaintiff's medications and provided samples of Cymbalta. Tr. at 695-96.
Plaintiff reported pain in her lower back and bilateral knees and legs on June 25, 2012. Tr. at 694. She described it as aching, sharp, shooting, and burning and rated it as a seven-to-eight. Id. She endorsed depression and occasional headaches. Id. She indicated her pain had returned approximately seven months after rhizotomy, causing her to take her medication more often. Id. However, she noted she could not take Zanaflex during the day because it made her too sleepy. Id. PA Davis noted 5/5 strength in Plaintiff's bilateral lower extremities, intact dorsiflexion and plantar flexion, negative SLR, 1-reflexes in her bilateral lower extremities, positive bilateral lumbar loading, normal muscle tone, and antalgic gait. Id. She refilled Plaintiff's prescriptions, indicated she would provide samples and a prescription for a neuropathic anti-inflammatory cream, and recommended repeat rhizotomy. Id.
Plaintiff reported increased stressors and pain in her low back and bilateral legs on September 18, 2012. Tr. at 692. She stated her pain was exacerbated by sitting, standing for long periods, bending, lifting, twisting, and rain. Id. She rated it as a six. Id. She noted the 2011 rhizotomy had given her 70-75% pain relief for six-to-seven months and indicated she was awaiting approval of a second rhizotomy. Id. She described her pain as "like a toothache" and indicated her medications were not as helpful. Id. Kathleen Bukowski, PA-C ("PA Bukowski"), who was supervised by Dr. Netherton, observed 4/5 strength in Plaintiff's bilateral lower extremities, intact dorsiflexion and plantar flexion, negative SLR, 1+ reflexes in the bilateral lower extremities, positive bilateral lumbar loading, normal muscle tone, antalgic gait, and diffuse tenderness to palpation over the thoracic and lumbar spines. Id. She administered a Toradol injection, provided Brown's cream and Flector patches, and refilled Plaintiff's medications. Tr. at 693.
On December 17, 2012, Plaintiff reported increased panic attacks and spasms in her shoulders. Tr. at 690. She requested more Tramadol. Id. She endorsed depression, anxiety, neck and back pain, stress, panic attacks, and insomnia. Id. She indicated her pain medication made her sleepy, but provided some relief. Id. PA Bukowsky observed 5/5 strength, intact dorsiflexion and plantar flexion, negative SLR on the right, positive SLR on the left, 1+ reflexes in the bilateral lower extremities, normal muscle tone, antalgic gait, myofascial banding in the bilateral trapezii, and tenderness over the cervical paraspinous and lumbar paraspinous areas and the bilateral shoulders. Id. She discontinued Ambien and prescribed Remeron for insomnia. Tr. at 691. She gave Plaintiff Brown's cream and referred her to physical therapy for treatment of myofascial pain and to Dr. Duffy for coping skills. Id.
On January 21, 2013, Plaintiff complained of pain in her lower back, leg, shoulders, and the back of her head. Tr. at 688. She described her pain as "shooting like fire and lightning and a toothache" and "aching and dull." Id. She rated her pain as a seven. Id. She indicated her pain was worsened by standing and sitting for long periods. Id. She endorsed depression, anxiety, diarrhea, constipation, insomnia, headaches, increased stress, and tingling in her hands. Id. PA Bukowski noted 5/5 strength in the lower extremities, intact dorsiflexion and plantar flexion, negative SLR, positive bilateral lumbar loading, 1+ reflexes in the bilateral lower extremities; normal muscle tone; and antalgic gait. Id. She discussed lacrosse ball therapy, refilled Plaintiff's medications, and indicated plans to replace her brace and schedule her for repeat bilateral rhizotomy of L4, L5, and S1. Tr. at 689.
Plaintiff presented to the emergency room ("ER") at Colleton Medical Center with a complaint of back pain on October 13, 2016. Tr. at 1221. She reported a recent worsening of back pain secondary to stress related to a hurricane. Tr. at 1222. She admitted a family member had pushed her, but denied having injured her back in the altercation. Id. David R. Hart, PA ("PA Hart"), noted 5/5 bilateral lower extremity strength, mild, diffuse tenderness to palpation, and full ROM of Plaintiff's lumbar spine. Tr. at 1224-25. He discharged Plaintiff with prescriptions for Prednisone, Flexeril, and Tramadol. Tr. at 1226.
On October 20, 2016, Plaintiff presented to the ER at St. Francis Hospital with a headache and flu-like symptoms. Tr. at 1232. Daniel Lewis, M.D. ("Dr. Lewis"), noted sinus tenderness and mild, scattered wheezing. Id. A flu screen was negative. Tr. at 1233. Dr. Lewis diagnosed sinusitis and asthmatic bronchitis. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the March 9, 2017 hearing, Plaintiff testified she lived with her 69-year-old mother in the latter's house. Tr. at 766. Plaintiff stated she was divorced and had five adult children. Tr. at 766-67. She described herself as right-handed, 5'3" tall, and weighing 180 pounds, following a 45-pound weight loss over the prior year. Tr. at 767. She acknowledged having a driver's license, but denied driving or having a vehicle for over two years. Tr. at 767-68. She indicated she drove twice a week at most when she had a vehicle. Tr. at 768. She denied any military service and noted she worked with Charleston County Emergency Medical Services ("EMS") initially as an emergency medical technician ("EMT") and subsequently as a dispatcher. Id. She stated she worked for Verizon Wireless as a telemarketer. Tr. at 768-69. She denied having worked or collected unemployment benefits since February 1, 2007. Tr. at 769. She testified she had no income and denied smoking, drinking, and using illegal drugs. Id. She reviewed the list of her medications and noted she had discontinued Lyrica, Amitriptyline, and Celebrex due to side effects that included severe rash and itching. Tr. at 770-71. She indicated some of her medications caused dizziness, fatigue, and sleepiness. Tr. at 771.
Plaintiff testified her routine and lifestyle had changed from February 2007. Id. She described in 2007 having depression and anxiety, but indicated she had learned to cope with it better over the years through prayer and meditation. Tr. at 771-72. She stated she had lower back pain that would shoot down her buttocks and legs and experienced severe headaches with shoulder spasms and neck pain. Tr. at 772-73. She estimated her pain on a bad day as a 10 and on a good day with medication as a four or five. Tr. at 773. She described as good day as one in which she was able to prepare breakfast, eat, and shower without having to take breaks every ten minutes due to back and shoulder spasms. Id. She described a bad day as waking with a severe migraine and needing to wear eye covers and remain in darkness because sound and light affected her. Tr. at 773. She indicated her migraines sometimes lasted three days. Id. She stated her migraines began after she sustained severe head and back injuries in a 2002 accident in which her tire burst, causing her vehicle to roll over. Tr. at 774, 780.
Plaintiff testified she tried to maintain and clean the house. Id. She estimated in 2007 having one or two good days a week, and more recently having as many as three or four good days a week. Tr. at 775-76. She described overexerting herself by making the bed or fixing the sofa covering, causing back spasms and lightning-like pain down her legs. Tr. at 776. She indicated she was forced to leave her position at Charleston County EMS because of her medications. Tr. at 776-77. She said she worked at Verizon Wireless for almost a year, but she could not perform the job because she had to wear a headset and requested too many breaks to address headaches or back spasms from sitting. Tr. at 777. She stated she left on short-term disability due to her doctors' appointments and medications, and she was ultimately terminated for not being able to perform the job requirements. Id. She estimated being able to lift ten pounds, walk 40 yards or ten to 20 minutes, and sit or stand for 30 to 40 minutes. Tr. at 778-79.
Upon questioning by her attorney, Plaintiff clarified that she meant she could lift a gallon of milk once, not repeatedly. Tr. at 782-83. She testified she was recommended a spinal stimulator trial, but she lacked insurance and funds to pay for the implant. Tr. at 783. She noted she had worn a back brace for the prior couple of years. Tr. at 784. She mentioned her TENS unit had broken and she lacked insurance or funds to replace it. Id. She noted Dr. Netherton at Southeastern Spine Institute provided her facet injections, epidural blocks, and a rhizotomy. Id.
b. Vocational Expert Testimony
Vocational Expert ("VE") Toneta Watson Coleman reviewed the record and testified at the hearing. Tr. at 788-94. The VE categorized Plaintiff's PRW as an EMS dispatcher as skilled, sedentary, specific vocational preparation ("SVP") of 5, Dictionary of Occupational Titles ("DOT") number 379.362-018, and as a telemarketer as semiskilled, sedentary, SVP of 3, DOT number 299.357-014. Tr. at 789. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work, but could never climb ladders, ropes, and scaffolds; could frequently balance; could occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; and should avoid concentrated exposure to workplace hazards. Id. The VE testified the hypothetical individual would be able to perform Plaintiff's PRW. Id.
The ALJ described a second hypothetical that modified the first to limit the person to sedentary work that required she never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to workplace hazards. Id. The VE testified the hypothetical individual would be able to perform Plaintiff's PRW. Tr. at 789-90.
The ALJ described a third hypothetical that modified the first to limit the person to sedentary work that required she never kneel, crawl, or climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, and crouch; and avoid concentrated exposure to workplace hazards. Tr. at 790. The VE testified the hypothetical individual would be able to perform Plaintiff's PRW. Id.
The ALJ described a fourth hypothetical that modified the first to limit the person to sedentary work with a sit-stand option at the work station every 45 minutes and required she never stoop, kneel, crouch, crawl, and climb ladders, ropes, or scaffolds; occasionally balance and climb ramps and stairs; never drive or operate machinery; and permitted three extra breaks per day of five to ten minutes each, in addition to normal breaks. Tr. at 790-91. The VE testified the hypothetical individual would be unlikely to retain or maintain employment. Tr. at 791.
The ALJ described a fifth hypothetical that modified the third, limiting the person to sedentary work requiring she never kneel, crawl, or climb ladders, ropes, or scaffolds; occasionally balance, stoop, crouch, and climb ramps and stairs; and avoid concentrated exposure to workplace hazards. Tr. at 791-92. She added the individual would be unable to tolerate sedentary-level work eight hours a day and 40 hours a week based on issues such as pain, need for pain medication, and need to take unscheduled breaks at unpredictable times of unpredictable duration. Id. The VE testified the hypothetical individual would be unable to retain or maintain employment. Tr. at 792.
In response to questions from Plaintiff's attorney, the VE testified the inability to stoop did not affect the two jobs cited as Plaintiff's PRW. Tr. at 793. The VE testified if the hypothetical individual needed up to an hour-and- a-half of recumbent rest during the workday, she would be unable to retain or maintain employment. Id.
The ALJ requested Plaintiff's attorney to obtain and provide the discharge summary from Plaintiff's 2002 week-long hospitalization for the car accident. Tr. at 780-82, 794-95.
Plaintiff's attorney submitted a letter stating the hospital was unable to process the request for medical records because "[a] patient by this name and/or date of birth and social security number has never received treatment at St. Vincent's Medical Center-Southside." Tr. at 1242.
2. The ALJ's Findings
In her decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2010.
2. The claimant has not engaged in substantial gainful activity since February 1, 2007, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, lumbar spondylosis, and migraines (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with some non-exertional limitations. The claimant is capable of lifting and/or carrying 10 pounds occasionally and less than 10 pounds frequently. She is capable of standing and/or walking at least 2 hours in an 8-hour workday and sitting about 6
hours in an 8-hour workday. She can never climb ladders, ropes, and scaffolds, and occasionally climb ramps and/or stairs, balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to workplace hazards.Tr. at 720-37. II. Discussion
6. The claimant is capable of performing past relevant work as an EMS dispatcher and telemarketer. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from February 1, 2007, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not properly weigh the medical opinions of record; and
2) the ALJ failed to adequately evaluate Plaintiff's subjective allegations.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Evaluation of Medical Opinions
Plaintiff argues the ALJ did not comply with the provisions of 20 C.F.R. § 404.1527(c) and § 416.927(c) in allocating little weight to opinions from Drs. Richardson and Netherton and partial weight to Dr. Rojugbokan's opinion. [ECF No. 12 at 15-16]. She maintains the ALJ erred in concluding Dr. Richardson's and Dr. Netherton's opinions were not supported by objective medical findings. Id. at 16-17. She contends the ALJ incorrectly rejected Dr. Netherton's opinion based on her conservative treatment where the record shows she received multiple injections, nerve ablation, and was scheduled for surgery prior to discovery of anatomical complications. Id. at 17-18. She argues the ALJ erred in rejecting Dr. Netherton's opinion based on evidence of improvement where there was no evidence of sustained improvement despite multiple modalities of treatment. Id. at 18. She claims the ALJ should not have discredited Dr. Netherton's opinion based on the absence of observations in his treatment notes as to her difficulties sitting and with attention and concentration because such specific notes are not required. Id. at 18-19. She maintains no evidence supports the ALJ's speculation that Drs. Richardson and Netherton provided their opinions based on sympathy or her demands. Id. at 19. She contends substantial evidence does not support the ALJ's reliance on the non-examining state agency consultant to the exclusion of the opinions of all treating and examining medical sources. Id. at 20. She asserts the ALJ placed undue emphasis on her dates of last treatment with Drs. Richardson and Netherton and failed to credit their specializations. Id. at 22.
The Commissioner argues substantial evidence supports the ALJ's evaluation of the medical opinion evidence. [ECF No. 14 at 13]. He claims the ALJ was not required to explicitly address each of the factors in 20 C.F.R. § 404.1527(c) and 416.927(c) in evaluating the opinions. Id. at 17, 22. He maintains Dr. Richardson last treated Plaintiff in May 2008, nearly a year before he provided his opinion and that treatment records from May 2008 to March 2009 showed generally normal findings. Id. at 14. He contends the ALJ cited inconsistency between Dr. Richardson's opinion and the objective evidence, including subsequent MRIs. Id. at 16-18. He argues the ALJ considered Dr. Netherton's opinions and provided detailed rationales to support the weight she assigned to each. Id. at 18-21. He contends the ALJ mentioned Plaintiff's doctors might have provided their opinions out of sympathy, but did not discount the opinions on this basis alone. Id. at 18, 22-23. He maintains the evidence supports the ALJ's characterization of Plaintiff's treatment as conservative. Id. at 23-24. He claims the ALJ reasonably considered evidence of improved symptoms with treatment. Id. at 24. He argues the ALJ rightfully relied on the absence of evidence as to attention/concentration deficits and difficulty sitting in Dr. Netherton's treatment notes. Id. at 24-25. He maintains the ALJ gave the same weight to Dr. Hopkins's opinion that he gave to Dr. Netherton's opinion, finding Plaintiff capable of sedentary, as opposed to light work. Id. at 25-27. He contends the ALJ provided a detailed explanation as to why she declined to give more weight to Dr. Rojugbokan's opinion. Id. at 27-28.
Because Plaintiff's claim was filed prior to March 27, 2017, the ALJ was required to evaluate the opinion evidence based on the criteria in 20 C.F.R. § 404.1527 and § 416.927. These regulations direct the ALJ to "evaluate every medical opinion" included in the record and provide that more weight is generally given "to the medical opinion of a source who has examined you than to the medical opinion of a medical source who has not examined you." 20 C.F.R. §§ 404.1527(c), 416.927(c). In addition, the regulations give special significance to opinions of treating sources, directing ALJs to accord those opinions "controlling weight" if they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ is required to "give good reasons in [her] decision for the weight [she gives the claimant's] treating source's medical opinion." Id.
"When a treating source's medical opinion is not given controlling weight, five factors are utilized to determine what lesser weight should instead be accorded to the opinion." Brown v. Commissioner Social Security Administration, 873 F.3d 251, 256 (4th Cir. 2017). These factors include "[l]ength of the treatment relationship and the frequency of examination," "]n]ature and extent of the treatment relationship," "'[s]upportability' in the form of the quality of the explanation provided for the medical opinion and the amount of relevant evidence—'particularly medical signs and laboratory findings'—substantiating it," "'[c]onsistency,' meaning how consistent the medical opinion is with the record as a whole,'" and " '[s]pecialization,' favoring 'the medical opinion of a specialist about medical issues related to his or her area of specialty.'" Id. (citing 20 C.F.R. 404.1527(c)(2)(i), (ii), (3), (4), (5)). The ALJ should also consider "any other factors 'which tend to support or contradict the medical opinion.'" Id. (citing 20 C.F.R. § 404.1527(c)(6)).
The ALJ declined to give controlling weight to the treating physicians' opinions, stating treatment notes did not "demonstrate clinical findings to support the extreme functional limitations stated in Dr. Richardson's and Dr. Netherton's opinions." Tr. at 734. She did not "find the opinions of Drs. Richardson and Netherton to be fully supported by objective clinical findings or persuasive in evaluating the claimant's disability." Id. She also stated "the possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes, for one reason or another" and that "patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient's requests and avoid unnecessary doctor/patient tension." Id. She admitted it was "difficult to confirm the presence of such motives," but considered it "more likely in situations where the opinions in question depart substantially from the rest of the evidence of record, or where the objective findings, such as the November 2010 MRI and the April 2008 MRI, and the minimal findings on physical examinations over time, do not support the statements of treating sources as in the current case." Id. The ALJ also found Dr. Rojugbokan's findings did "not support disabling limitations" for Plaintiff. Id.
Each opinion is set forth below, along with the ALJ's explanation as to how she weighed it.
a. Dr. Richardson's Opinions
i. June 20, 2008 Letter
On June 20, 2008, Dr. Richardson provided a letter stating Plaintiff had been his patient "for some time" and "ha[d] been diagnosed with lumbar disc displacement with an annular tear." Tr. at 563. He wrote "[d]ue to her spine condition, I do not foresee her returning to any type of meaningful employment. Therefore, she is disabled." Id.
The ALJ considered Dr. Richardson's June 2008 letter, but accorded it little weight, explaining:
[T]he determination of whether an individual is disabled or unable to work is reserved to the Commissioner. Dr. Richardson again failed to describe the claimant's specific work-related abilities and limitations . . . . Further, Dr. Richardson's diagnosis of lumbar disc displacement with an annular tear, while consistent with prior imaging, was inconsistent with the most recent MRI in April 2008, which was generally unremarkable and showed no evidence of disc herniation or protrusion, and no evidence of nerve root compression.Tr. at 727.
ii. March 30, 2009 Questionnaire
On March 30, 2009, Dr. Richardson completed a questionnaire addressing Plaintiff's impairments. Tr. at 594-601. He indicated he initially treated Plaintiff on February 24, 2006, and most recently treated her on May 16, 2008. Tr. at 594. He identified Plaintiff's diagnosis as lumbar disc displacement. Id. He assessed her prognosis as fair. Id. He stated clinical findings supported mild disc bulging at L5-S1, causing Plaintiff to suffer from low back and lower extremity pain. Id. He explained MRI results showed mild disc bulge and annular tear at L5-S1. Tr. at 595. He described Plaintiff's symptoms as continuous low back and leg pain and insomnia. Tr. at 595, 596. He indicated Plaintiff's symptoms and functional limitations were reasonably consistent with the impairments he described. Tr. at 595. He rated Plaintiff's pain as a seven-to-10 and noted it increased with bending, lifting, pushing, pulling, and prolonged sitting or standing. Id. He noted Plaintiff experienced mild fatigue. Tr. at 596. He stated Plaintiff had been unable to completely relieve her pain with medication and without unacceptable side effects. Id. Dr. Richardson estimated Plaintiff could sit for zero-to-one hour and stand for zero-to-one hour in an eight-hour workday. Id. He indicated Plaintiff would be unable to sit, stand, or walk continuously and would need to move around approximately every 20 minutes. Tr. at 596-97. He stated Plaintiff could frequently lift and carry zero-to-five pounds and occasionally lift and carry five-to-10 pounds. Tr. at 597. He restricted Plaintiff to lifting a maximum of 10 pounds. Id. He specified Plaintiff had no limitations in using her upper extremities. Tr. at 597-98. He listed Plaintiff's medications as Fiorinal, Lyrica, Zanaflex, and Lortab. Tr. at 598. He denied having substituted medications to produce fewer symptoms or relieve side effects. Id. He indicated Plaintiff's other treatment had included physical therapy and ESIs. Id. He stated Plaintiff's symptoms would likely increase if she were placed in a competitive work environment. Id. He indicated Plaintiff's condition interfered with her ability to keep her neck in a constant position and prevented her from performing a full-time job that would demand such activity. Tr. at 598-99. He noted Plaintiff's experience of pain, fatigue, or other symptoms was constantly severe enough to interfere with her attention and concentration. Tr. at 599. He confirmed that Plaintiff's impairments were ongoing and were expected to last at least 12 months. Id. He denied that Plaintiff was a malingerer and that emotional factors contributed to the severity of her symptoms and functional limitations. Id. He indicated Plaintiff was incapable of even low stress work. Id. He estimated Plaintiff would require breaks approximately every 30 minutes during an eight-hour workday and would need to rest for roughly 30 minutes prior to returning to work. Id. He indicated Plaintiff's impairments were likely to produce good and bad days. Tr. at 600. He estimated Plaintiff would likely be absent from work more than three times per month. Id. He noted additional limitations to include no pushing, pulling, kneeling, bending, or stooping. Id. He considered his description of Plaintiff's symptoms and limitations to be applicable as early as February 24, 2006. Id.
The ALJ explained her allocation of "little weight" to Dr. Richardson's March 2009 opinion as follows:
Prior to Dr. Richardson's March 2009 opinion, he had last seen or treated the claimant in May 2008. Therefore, he had not seen the claimant for close to a year prior to rendering this opinion. Physical examinations conducted by Dr. Netherton and the physician assistants during the interim period from May 2008 through March 2009 showed generally normal strength, sensation, and muscle tone, with only minimal tenderness to palpation and slightly limited range of motion. These clinical findings are inconsistent with Dr. Richardson's March 2009 opinion. Notably, Dr. Richardson's assessment of lumbar disc displacement with an annular tear appears to be based on medical imaging from 2006, while the more recent April 2008 lumbar MRI was generally unremarkable and the November 2010 lumbar MRI showed only mild noncompressive spondylosis (Exhibits 1F/2-3 and 12F/7). Overall, as Dr. Richardson's stated diagnosis and the clinical findings upon which he based this opinion are inconsistent with the evidence of record, and he had not seen her in about a year, the conclusions associated with these findings are unpersuasive.Tr. at 728.
b. Dr. Netherton's Opinions
i. June 24, 2010 Letter
On June 24, 2010, Dr. Netherton provided a letter addressing Plaintiff's impairments. Tr. at 620. He noted he had treated Plaintiff for multilevel lumbar degenerative spine disease with lumbar disc disorder beginning on August 7, 2008. Id. He stated Plaintiff's treatment had included ESIs, physical therapy, and medications. Id. He noted her treatment had provided some relief, but she continued to experience significant pain and to take medications on a regular basis. Id. He did "not foresee" Plaintiff being "involved in any type of gainful employment." Id. Because of "significant pain and significant degeneration in her spine," he indicated Plaintiff should "refrain from activities that include lifting anything over 15 lbs., bending, squatting, lifting, climbing, sitting for any time longer than 45 minutes or standing longer than 45 minutes without changing positions." Id. He further noted Plaintiff "cannot operate equipment or drive secondary to the pain medications that she takes." Id. He noted Plaintiff's condition was permanent and degenerative. Id. He did not consider Plaintiff employable and indicated she should be considered "totally and permanently impaired and disabled." Id.
The ALJ explained her consideration of Dr. Netherton's June 2010 opinion as follows:
Dr. Netherton treated or supervised the claimant's treatment for several years, therefore this opinion has been given partial weight and some of Dr. Netherton's limitations have been applied to the residual functional capacity. Specifically, the limitation to lifting nothing over 15 pounds is generally consistent with work at the sedentary exertional level and is reasonable given the claimant's ongoing complaints of pain with increased activity in
the context of the mild abnormalities noted on medical imaging and physical examination findings. The suggestion that the claimant should refrain from activities involving bending, squatting, lifting, and climbing has been given some weight in finding that the claimant can never climb ladders, ropes, or scaffolds, and that she can occasionally perform other postural activities. The restrictions against operating equipment or driving have not been included in the residual functional capacity because the claimant testified that she continued to drive when necessary when she had a vehicle available. Further, Dr. Netherton noted that the driving restriction was associated with the claimant's pain medication and there is no evidence that the claimant had continued to require chronic prescription pain medication since 2013. The restrictions to sitting no longer than 45 minutes and standing no longer than 45 minutes without changing positions have not been included in the residual functional capacity, due to the minimal abnormalities noted in the most recent medical imaging and the relatively mild objective clinical findings on physical examinations throughout the treatment notes. Notably, the claimant was only intermittently found to have tenderness to palpation along the spine and limited range of motion and had no muscle atrophy. More significant clinical abnormalities would be expected if the claimant's ability to sit and stand were as limited as set forth in this opinion. No weight has been given to Dr. Netherton's opinion that the claimant is not employable as this opinion is one reserved for the Commissioner.Tr. at 729.
ii. October 16, 2011 Questionnaire
On October 16, 2011, Dr. Netherton completed a spinal impairment questionnaire. Tr. at 681-87. He indicated he treated Plaintiff on a bi-monthly basis, beginning August 7, 2008, and most recently on August 30, 2011. Tr. at 681. He identified Plaintiff's diagnoses as cervical spondylosis and lumbar DDD and spondylosis. Id. He provided a "guarded" prognosis, noting Plaintiff's impairment would progress, as it was a degenerative process. Id. He noted positive clinical findings that supported his opinion to include limited ROM of the lumbar spine with decreased ROM to flexion and extension, paracervical and paralumbar tenderness, paralumbar and bilateral lumbar quadratus muscle spasms, abnormal gait, positive bilateral SLR test at 50 degrees, and cervical and lumbar mechanical pain. Tr. at 681-82. He stated his diagnosis was supported by evidence on MRI of cervical and lumbar degenerative disease. Tr. at 683. He identified Plaintiff's primary symptom as neck and lumbar spine pain with motion. Id. He stated Plaintiff's symptoms and functional limitations were reasonably consistent with her physical and/or emotional impairments described in the evaluation. Id. He described Plaintiff's pain as dull and aching with motion and stabbing with overexertion. Id. He indicated Plaintiff's pain was located in the paracervical spine and over the facet area of the lumbar spine. Id. He stated Plaintiff experienced daily pain that worsened with activity and stress. Tr. at 683-84. He indicated Plaintiff's pain had not been completely relieved with medication and without unacceptable side effects. Tr. at 684. He estimated Plaintiff could sit for two hours and stand/walk for one hour in an eight-hour workday. Id. He recommended that Plaintiff not sit continuously and get up and move around for 10 minutes every hour. Id. He indicated Plaintiff should not stand or walk continuously. Id. He estimated Plaintiff could frequently lift and carry zero-to-five pounds and occasionally lift five-to-10 pounds. Tr. at 684-85. He stated Plaintiff's medications included Lortab, Ambien, Fiorinal, Relafen, Soma, and Lyrica. Tr. at 685. He indicated he had substituted medication to reduce Plaintiff's symptoms or side effects. Id. He noted Plaintiff's other treatment had included radiofrequency ablation and spinal injections. Id. He described Plaintiff's experience of pain or other symptoms as frequently severe enough to interfere with attention and concentration. Id. He stated Plaintiff's symptoms were ongoing and expected to last at least 12 months. Id. He noted chronic depression contributed to the severity of Plaintiff's symptoms and limitations. Id. He denied that Plaintiff was a malingerer. Tr. at 686. He stated Plaintiff was capable of low stress work, but noted stress aggravated her pain. Id. He estimated Plaintiff would need to take unscheduled breaks for 15-to-20 minutes every two-to-three hours because of pain. Id. He indicated Plaintiff's condition interfered with her ability to keep her neck in a constant position and would prevent her from performing a full-time competitive job that would require such activity on a sustained basis. Id. He noted Plaintiff's impairments were likely to produce good and bad days. Id. He estimated Plaintiff's impairments or treatment would likely result in her being absent from work more than three times a month. Id. He indicated Plaintiff needed to avoid heights and should do no pushing, pulling, kneeling, bending, or stooping. Tr. at 687. He stated the limitations he described had applied for the prior two years. Id. He noted it was "very unlikely [he would] be able to get [Plaintiff] to do any kind of work," as "[h]er pain [would] be a severe distraction." Id.
The ALJ explained her decision to accord "little weight" to Dr. Netherton's October 2011 opinion, as follows:
While Dr. Netherton has treated the claimant, he last saw the claimant in February 2011, and rendered this opinion in October 2011, over eight months after he last treated the claimant. As discussed above, the claimant's pain management treatment from November 2008 through August 2011 was generally routine and conservative. The claimant followed up with physician assistants at Dr. Netherton's practice and saw him only when she was undergoing a procedure, such as an epidural steroid injection, medial branch block, or the rhizotomy. The claimant generally reported good relief from these procedures, particularly the rhizotomy. However, she continued to complain of pain with standing and activity. Treatment notes fail to document complaints of problems sitting. Therefore, treatment notes are inconsistent with Dr. Netherton's indication that the claimant could sit for no more than 2 hours of an 8-hour workday. The symptoms set forth in this opinion are inconsistent with the recent physical examination findings, which document an ongoing antalgic gait, but other symptoms only infrequently. Although Dr. Netherton indicated that the claimant's pain would interfere with her attention and concentration, treatment records fail to document any attention or concentration deficits on examination. Overall, the mild objective findings from November 2008 through August 2011 fail to support Dr. Netherton's opinion that the claimant would be absent from work more than 3 times per month, that she could tolerate only low stress work, that she would have to take unscheduled breaks, and that she could do no pushing, pulling, kneeling, bending, or stooping. However, I have included the restriction against concentrated exposure to workplace hazards out of an abundance of caution, which is consistent with Dr. Netherton's opinion that the claimant would have to avoid heights. Additionally, I note that the residual
functional capacity for work at the sedentary exertional level would not be precluded by the lifting and carrying limitations set forth in this opinion.Tr. at 730.
iii. August 15, 2013 Letter
On August 15, 2013, Dr. Netherton wrote a letter describing Plaintiff's treatment history and limitations. Tr. at 703. He stated he had treated Plaintiff for lumbar DDD and lumbar and cervical spondylosis since August 7, 2008. Id. He felt that Plaintiff had a guarded prognosis, as her disease process was degenerative. Id. He considered Plaintiff disabled and unable to perform any type of work on a regular or continuing basis since February 1, 2007. Id. He explained Plaintiff's impairments resulted in decreased flexion and extension of her lumbar spine, paracervical and lumbar tenderness, paralumbar muscle spasm, abnormal gait, and positive bilateral SLR. Id. He stated Plaintiff suffered from "daily dull, aching pain in her neck and lumbar spine" that was exacerbated by physical activity. Id. He indicated Plaintiff should only stand or walk for up to one hour in an eight-hour day, should only sit for two hours in an eight-hour day, would need to get up and move for 10 minutes each hour, would require unscheduled breaks based on her level of pain, should only lift and carry up to five pounds frequently, and should avoid jobs that require she keep her neck in a constant position, push, pull, kneel, bend, or stoop. Id. He stated Plaintiff's pain was frequently severe enough to interfere with her attention and concentration. Id. He indicated Plaintiff experienced chronic depression that contributed to the severity of her symptoms and functional limitations. Id. He noted Plaintiff experienced good and bad days and would likely be absent from work more than three times per month due to her impairments and symptoms. Id.
The ALJ gave "little weight" to this opinion, explaining:
While Dr. Netherton has treated the claimant, the medical evidence documents that he last saw the claimant in February 2011, when performing the rhizotomy. As discussed above, the claimant's pain management treatment from November 2011 through January 2013 was generally routine and conservative. Throughout this period, the claimant followed up with physician assistants at Dr. Netherton's practice. The claimant generally reported adequate relief from these procedures. However, she continued to complain of variable pain with standing and activity. Therefore, treatment notes are inconsistent with Dr. Netherton's indication that the claimant could sit for no more than 2 hours of an 8-hour workday. The symptoms set forth in this opinion are inconsistent with the recent physical examination findings, which documented an ongoing antalgic gait, but other symptoms only infrequently. Although Dr. Netherton indicated that the claimant's pain would interfere with her attention and concentration, treatment records fail to document any attention or concentration deficits on examination. Overall the mild objective findings from November 2011 through January 2013 fail to support Dr. Netherton's opinion that the claimant would be absent from work more than 3 times per month, that she could tolerate only low stress work, that she would have to take unscheduled breaks, that she could lift or carry up to 5 pounds, that she could not do work with her neck in a constant position, that she would need to move about as often as indicated, and that she could do no pushing, pulling, kneeling, bending, or stooping. Additionally, while Dr. Netherton noted that the claimant's chronic depression and stress exacerbated her symptoms, there is no evidence that she sought or received
specialized mental health treatment. Further, treatment notes fail to document significant ongoing mental symptoms over time.Tr. at 732.
c. Dr. Rojugbokan's Opinion
On November 16, 2011, Dr. Rojugbokan completed a medical source statement of ability to do physical work-related activities at the request of the Social Security Administration. Tr. at 670-74. He stated Plaintiff could continuously lift and carry up to 10 pounds and occasionally lift and carry 11-to-20 pounds. Tr. at 670. He indicated Plaintiff could sit for 30 minutes, stand for 20 minutes, and walk for 20 minutes at one time without interruption. Tr. at 671. He estimated Plaintiff could sit for four hours, stand for 30 minutes, and walk for two hours in an eight-hour workday. Id. He noted Plaintiff would need to lie down for the remainder of an eight-hour workday. Id. He denied that Plaintiff was required to use a cane to ambulate. Id. He indicated Plaintiff was capable of continuous reaching, handling, fingering, feeling, and operation of foot controls. Tr. at 672. He stated Plaintiff could occasionally push and pull. Id. He estimated Plaintiff could never crouch or climb ladders or scaffolds; occasionally stoop, kneel, and crawl; frequently climb stairs and ramps; and continuously balance. Tr. at 673. He denied that Plaintiff's impairments affected her hearing and vision. Id. He stated Plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces or climb a few steps at a reasonable pace with the use of a single handrail. Tr at 674. He indicated Plaintiff could perform activities like shopping, travel without a companion for assistance, ambulate without an assistive device, use standard public transportation, prepare a simple meal and feed herself, care for her personal hygiene, and sort, handle, and use paper files. Id. He indicated the limitations he found were first present on October 8, 2008, and had lasted for 12 consecutive months. Id.
The ALJ considered Dr. Rojugbokan's findings on exam. Tr. at 727-28, 730-31. She gave partial weight to his opinion, "noting that the assessed limitations appear[ed] to be based primarily on the claimant's self-report" and further indicating:
The doctor's narrative, the objective examination findings, and the review of symptoms note are described in this report as "Essentially all normal except for the pain that the claimant was suffering from." Little weight has been given to Dr. Rojugbokan's opinion regarding the claimant's ability to sit, stand, and walk, as this portion of the opinion appears to simply restate the claimant's subjective reports, and does not appear to be based on the objective medical evidence. Specifically, Dr. Rojugbokan's examination found the claimant had a normal tandem walk and normal heel-to-toe walk. She was able to squat, and she did not use a cane or walker. There was no marked muscular tenderness, except for the joints, there was no sensory loss, and there was no joint abnormality. Further, there was no muscle atrophy, as would be expected if the claimant's ability to sit, stand, and walk was as limited as described in this opinion. Further, I note that while Dr. Rojugbokan indicated that the stated limitations existed since October 2008, the date of the prior consultative examination, the opinion set forth in that report did not describe any functional limitations. I agree with the conclusion that the
claimant should never climb ladders, ropes, or scaffolds, and that she can occasionally stoop, kneel, and crawl. I find this opinion internally inconsistent in stating that the claimant can frequently climb ramps and stairs but also asserting that she is unable to climb a few steps at a reasonable pace with the use of a single handrail. There were no findings of upper extremity deficit to support the conclusion that the claimant should be limited to occasional pushing and pulling with the upper extremities, beyond the weight restrictions inherent in a limitation to work at the sedentary exertional level. However, while this opinion suggests that the claimant can lift and carry consistent with the light exertional level, I find it reasonable to limit her to work at the sedentary exertional level based on her consistent reports that her pain is exacerbated by standing and activity. Despite her antalgic gait, the claimant has not required an assistive device for balance, and I therefore find no evidence to include Dr. Rojugbokan's limitations on walking on rough or uneven surfaces.Tr. at 731.
The ALJ provided a detailed explanation for the weight she gave to opinions from Drs. Richardson, Netherton, and Rojugbokan. However, she committed multiple errors that render her weighing of the opinions unsupported by substantial evidence.
Absent from the ALJ's explanation is recognition of the doctors' "consistent medical conclusions" about Plaintiff's "limited abilities." See Lewis v. Berryhill, 858 F.3d 858, 867-68 (4th Cir. 2017) (finding the ALJ overlooked the plaintiff's physicians' consistent medical conclusions about her limited abilities to stand, sit, grip, or perform other manual tasks and concluding "the ALJ's analysis ha[d] impermissible gaps when describing the opinions of [her] treating physician and her overarching medical history"); see also 20 C.F.R. § 404.1527(c)(4), 416.927(c)(4). Although they indicated different maximum abilities for sitting, standing, and walking, Drs. Richardson, Netherton, and Rojugbokan similarly indicated Plaintiff was incapable of prolonged sitting and standing and unable to meet sitting, standing, and walking requirements necessary to complete an eight-hour workday. Compare Tr. at 596 (Dr. Richardson's impression that Plaintiff could engage in no prolonged sitting or standing and could sit for zero-to-one hour and stand for zero-to-one hour in an eight-hour workday), with Tr. at 620, 684-86, 703 (Dr. Netherton's indications that Plaintiff should not sit or stand for greater than 45 minutes at a time, could sit for two hours and stand/walk for one hour in an eight-hour workday, would need to move around for 10 minutes each hour, could not engage in continuous standing/walking, and would require unscheduled breaks lasting 15-to-20 minutes every two-to-three hours), and Tr. at 671-72 (Dr. Rojugbokan's opinion that Plaintiff could sit for 30 minutes at a time and for four hours in an eight-hour workday, could stand for 20 minutes at a time and for 30 minutes in an eight-hour workday, could walk for 20 minutes at a time and for two hours in an eight-hour workday, and would need to lie down for the remainder of an eight-hour workday). The ALJ summarily dismissed restrictions on sitting as inconsistent with evidence in the physicians' records, but records from Drs. Richardson and Rojugbokan and PAs Blease and Bukowski, whom Dr. Netherton supervised, include Plaintiff's complaints that her pain was worsened by prolonged sitting. See Tr. at 554, 558, 676, 688, 692, 701. The ALJ rejected Drs. Richardson's and Netherton's opinions that Plaintiff's pain would interfere with attention and concentration and that her impairments and symptoms would cause her to be absent from work more than three times per month, Tr. at 599, 600, 685, 686, 703, as unsupported by their records, Tr. at 728, 730, 732, without acknowledging the treating physicians' consistent impressions.
Like the ALJ in Lewis, the ALJ failed to consider that the treating and examining physicians did not "suspect [Plaintiff] of exaggerating her symptoms." Id. at 867; see Tr. at 564-68 (noting no suspicion of exaggeration of symptoms during Dr. Rojugbokan's first exam), 595 (containing Dr. Richardson's impression that Plaintiff's symptoms and functional limitations were reasonably consistent with the impairments he described), 599 (reflecting Dr. Richardson's impression that Plaintiff was not malingering), 675-80 (indicating no suspected exaggeration during Dr. Rojugbokan's second exam), 683 (including Dr. Netherton's impression that Plaintiff's symptoms and functional limitations were reasonably consistent with her physical and/or emotional impairments described in the evaluation), 686 (showing Dr. Netherton did not consider Plaintiff to be a malingerer).
"Courts have generally held that 'where there is no competing evidence, the ALJ is not permitted to substitute [her] opinion for those of the examining doctors.'" Shipman v. Colvin, C/A No. 5:14-2700-DCN, 2015 WL 5691870, at *6 (D.S.C. Sept. 28, 2015) (quoting Rogers v. Colvin, C/A No. 5:12-2979, 2014 WL 658002, at *8 (D.S.C. Feb. 19, 2014). In Wilson v. Heckler, 743 F.3d 218, 221 (4th Cir. 1984), the court found "the ALJ erroneously exercised an expertise he did not possess in the field of orthopedic medicine" when he determined the clinical findings in a consultative examination "did not support the severity shown in the physical capacities evaluation." The court noted the consultative examiner's "diagnosis and conclusions were supported by those of . . . a treating physician, both of which were uncontradicted except as they differed from each other in degree." Id. The court held "the finding of the ALJ that plaintiff's functional capacity was any greater than that described by [the consultative examiner] was without substantial evidence to support it. Id.
Like the ALJ in Wilson, the ALJ here found the clinical findings did not support the functional limitations the treating and examining physicians included in their opinions. The ALJ indicated Drs. Richardson and Netherton based their diagnoses and opinions on the 2006 lumbar MRI, which she found inconsistent with the April 2008 and November 2010 lumbar MRIs. See Tr. at 727, 728. However, the ALJ's conclusion is based on her interpretation of the MRI findings, without consideration of other significant objective evidence and in the absence of expert explanation for the perceived inconsistencies between the MRIs. Although Dr. Richardson cited the lumbar MRI as supporting his diagnosis, his records also contain other objective evidence to support the diagnosis of mild disc bulging at L5-S1 with annular tear. See Tr. at 544-45 (containing an operative report indicating Dr. Richardson was unable to proceed with the IDET procedure because the size of the annular tear prevented him from placing the catheter, despite multiple attempts), 549 (showing evidence on CT scan of the lumbar spine of mild internal disc disruption, a moderately-large penetrating left foraminal annular tear associated with a shallow-based protrusion at Plaintiff's L5-S1 level, and minimal facet arthrosis at L4-5 and L5-S1), 548 (indicating discogram showed evidence of an annular tear with discogenic pain at the L5-S1 level). Dr. Netherton stated his opinion was supported by cervical and lumbar MRI findings, as well as clinical observation of limited ROM of the lumbar spine with decreased ROM to flexion and extension, paracervical and paralumbar tenderness, paralumbar and bilateral lumbar quadratus muscle spasms, abnormal gait, positive bilateral SLR test at 50 degrees, and cervical and lumbar mechanical pain. Tr. at 681-82. The ALJ discussed positive and negative findings on clinical exam, but, contrary to Plaintiff's treating physicians and the consultative examiner, concluded the exam findings were not significant enough to support the indicated restrictions. It appears the ALJ exercised an expertise she did not possess in discrediting the restrictions advanced by the treating and examining physicians.
The record does not contain a report from an MRI of the cervical spine, but it appears Dr. Netherton is referring to the 2004 cervical MRI that Dr. Richardson indicated showed a disc bulging at C4-5 and C5-6. See Tr. at 558.
Fourth Circuit precedent does not support the ALJ's allocation of greater weight to the non-examining state agency consultants' opinion than to the treating and examining physicians' opinions. Dr. Hopkins provided the following explanation for the exertional limitations he included in his RFC assessment:
36 [year old with history] of [motor vehicle accident] and chronic [low back pain with] occasional radiation into post[erior] thighs. Multiple imaging studies and CT myelograms have shown only L5-S1 annular tear w[ith] concordant pain. [April 2008] MRI w[ith] gadolinium and myelotomography was very unremarkable. No evidence for malalignment, canal or foraminal stenosis. Poor surgical candidate at this point, and no funds for recommended dorsal column stim[ulator]. Does attend chronic pain m[anagement] at times, although no evidence she has been seen in last 6 months. Wears back brace for support. No neurologic deficits, [straight leg raising] generally negative. Dec[reased] lumbar ROM. Gait unremarkable although difficulty walking straight line, squatting. Appeared to be in no distress at [consultative exam]. Alleges worsening arthritis, but no evidence in current CE and [musculoskeletal review of symptoms] was neg[ative] except for back. SEVERE. Alleges migraine headaches since [motor vehicle accident], exacerbated by stress, lighting. No neuro[logical] deficits or evidence for severe problem with [headache]. NOT SEVERE.Tr. at 570-71. He subsequently discussed Plaintiff's symptoms as follows:
[Medically-determinable impairment] does exist, but severity of impairment greater than expected based on pathology or objective findings. Cl[aimant] allegedly on multiple meds, but many are meds that would not be given over a long time w[ithout] frequent visits [of] which there is no evidence, [upper extremity] neck prob[lems] which also are not currently in evidence.Tr. at 574.
An ALJ may "credit the opinion of a non-treating, non-examining source where that opinion has sufficient indicia of 'supportability in the form of a high-quality explanation for the opinion and a significant amount of substantiating evidence, particularly medical signs and laboratory findings; consistency between the opinion and the record as a whole; and specialization in the subject matter of the opinion.'" Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018). The ALJ gave "partial weight" to Dr. Hopkins's opinion overall, but "great weight to that portion of Dr. Hopkins' opinion noting that the alleged severity of the claimant's impairment was greater than expected based on pathology and objective findings, noting that the objective findings did not demonstrate any significant worsening of the claimant's symptoms since Dr. Hopkins rendered his opinion." Tr. at 735. She acknowledged that Dr. Hopkins was a "non-examining source," but found his opinion "more consistent with the objective evidence than the opinions of [Plaintiff's] treating physicians" and "therefore more persuasive in determining [her] residual functional capacity." Id.
As an initial matter, the undersigned notes Dr. Hopkins' opinion appears to have been formed without the benefit of reviewing the May 2008 treatment note from Dr. Richardson, Tr. at 528, and the August 2008 treatment note from Dr. Netherton, Tr. at 560-62, given his indication that that there was "no evidence [Plaintiff] ha[d] been seen last 6 months." Tr. at 570. Although the ALJ found "the objective findings did not demonstrate any significant worsening of the claimant's symptoms since Dr. Hopkins rendered his opinion," Tr. at 735, Dr. Hopkins based his opinion on the absence of objective findings that appeared in subsequent records. He specifically noted Plaintiff's unremarkable gait, Tr. at 570, but subsequent records consistently show Plaintiff ambulated with an antalgic gait. See Tr. at 591, 592, 630, 634, 637, 640, 643, 646, 650, 653, 656, 658, 659, 660, 679, 688, 690, 692, 695, 695, 697, 698, 699, 701, 704. He also noted the absence of neurological deficits, Tr. at 570, but subsequent records indicated some reduction in Plaintiff's lower extremity reflexes. See Tr. at 592, 643, 646, 650, 653, 688, 690, 692, 694, 701, 704. The Board of Medical Examiners identifies Dr. Hopkins's specialization as obstetrics and gynecology. See South Carolina Department of Labor, Licensing and Regulation, Medical Board, available at https://verify.llronline.com/LicLookup/Med/Med2.aspx?LicNum=7666&cdi=35 0&bk=bd60c8e7-8cde-48d8-bb01-b56822538a51-481d6 (last visited April 23, 2020). Thus, Dr. Hopkins's lacked specialization in orthopedics, neurology, pain management, or any other area pertinent to Plaintiff's impairments and alleged limitations. Given Dr. Hopkins's lack of specialization in the subject matter of his opinion and the inconsistencies between his opinion and the record as a whole, the undersigned cannot find substantial evidence supports the ALJ's reliance on Dr. Hopkins's opinion to discredit the treating physicians' opinions.
Moreover, the regulations direct ALJs to "give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist." 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). Dr. Richardson is a specialist in physical medicine and rehabilitation. See South Carolina Department of Labor, Licensing and Regulation, Medical Board, available at https://verify.llronline.com/LicLookup/Med/Med2.aspx?LicNum=17564&cdi=350&bk=88bb51e6-576b-45eb-9ea5-ca52c33c22b8-b3204 (last visited April 23, 2020). Dr. Netherton is a specialist in anesthesiology and pain management. SeeSouth Carolina Department of Labor, Licensing and Regulation, Medical Board, available at https://verify.llronline.com/LicLookup/Med/Med2.aspx?LicNum=16147&cdi=350&bk=a391ec53-8215-4f18-9c1d-48b24dd79b99-67f7b (last visited April 23, 2020). Drs. Richardson's and Netherton's specializations qualified them to address the functional restrictions imposed by Plaintiff's impairments and the effects of her pain.
Finally, the ALJ's suggestion that Plaintiff's physicians included limitations in their opinions based on either sympathy for her or her demands on them has no factual basis in the record. Therefore, it cannot be considered as supporting the ALJ's weighing of the evidence.
In light of the foregoing, substantial evidence does not support the weight the ALJ accorded to opinions from Drs. Richardson, Netherton, and Rojugbokan.
2. Consideration of Plaintiff's Allegations
Plaintiff argues the ALJ failed to properly evaluate her testimony. [ECF No. 12 at 23]. She maintains the ALJ relied primarily on objective medical findings to the exclusion of other evidence. Id. at 24-25. She contends the ALJ mischaracterized her treatment as conservative, failed to consider the progressive nature of her impairments, improperly considered her ADLs, and discredited her allegations based on a lack of consistent medical treatment over a period in which she lacked insurance. Id. at 24-26.
The Commissioner argues substantial evidence supports the ALJ's conclusion that Plaintiff's statements were not entirely consistent with the medical and other evidence of record. [ECF No. 14 at 29]. He maintains the ALJ considered Plaintiff's allegations, but concluded they were not supported by her ability to work from 2002 to 2006, conservative treatment history, MRI evidence, normal exam findings, infrequent treatment for headaches, failure to pursue physical therapy, lack of treatment, and inconsistent ADLs. Id. at 30-31. He contends the ALJ specifically noted Plaintiff's impairments did not progress, as evidenced by stable findings on exams. Id. at 32. He claims the ALJ appropriately considered Plaintiff's treatment as conservative and her ADLs as more than minimal. Id. at 32-34. He maintains the ALJ did not err in considering a lack of consistent medical treatment after 2013 where Plaintiff presented no evidence that she sought treatment through low- or no-cost providers and required no emergency treatment. Id. at 34-35.
The ALJ summarized Plaintiff's testimony from the May 2010, October 2011, August 2013, and March 2017 hearings. Tr. at 722-23. She found that Plaintiff's "medically determinable impairments could reasonably be expected to produce some" of the symptoms she alleged, but her "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record." Tr. at 723. She stated "[t]reatment notes simply fail to indicate the level of dysfunction the claimant is alleging." Tr. at 724. She noted the absence of treatment notes from the hospitalization Plaintiff testified occurred following her 2002 car accident. Id. She acknowledged that Plaintiff "went back to work after the accident and worked at the level of substantial gainful during at least 2003 and 2006." Id. She further wrote:
[A] finding that the claimant is incapable of all work is not supported by the medical records. The claimant testified that she was involved in an automobile accident in 2002, and since that time, has suffered from chronic back pain. Medical records indicate that she has sought conservative treatment, including pain medication, epidural injections, nerve blocks, and physical therapy. However, the claimant was never deemed to be a surgical candidate for her back pain, after an April 2008 MRI showed no evidence of a disc herniation or protrusion, and no evidence of nerve root compression (Exhibit 1F/3). Another MRI taken in November 2010 showed mild noncompressive spondylosis, but the claimant reported a 40-to-50 percent pain relief after undergoing a medial branch block at L4, L5, and S1 in January 2011 (Exhibit 12F/2).Tr. at 724.
The ALJ further found Plaintiff's allegations to be inconsistent with her ADLs, explaining:
She is able to wash dishes, perform household chores, bathe and dress herself, and watch television. She informed her physician in March 2011 that she was taking a trip out of state to visit her father (Exhibit 13F/5). Since her amended alleged onset date, the claimant has reported that she was able to attend her son's football games and track and field meets at times. She also attended church occasionally and visits with family. The claimant has been able to sweep the floor with breaks, clear the kitchen table, fold laundry, drive when necessary, wash dishes, clean the kitchen, shop for groceries with a motorized buggy, prepare meals, and generally maintain the house, and perform activities of personal care independently, although she alleged some difficulty getting dressed and putting shoes on. While she does suffer from both back pain and headaches, she testified she is able to walk for up to 30 minutes at a time, which was also
confirmed during the November 2011 consultative examination (Exhibit 14F).Id.
The ALJ considered Plaintiff's reported limitations to be "out of proportion to the objective examination findings and studies, as well as the physical examinations documented in the treatment record." Id. She wrote:
In particular, the 2008 lumbar MRI was generally unremarkable and the 2010 lumbar MRI showed only mild noncompressive spondylosis. Despite her complaints of debilitating pain, examinations have generally found her to be in no acute distress. She has had an antalgic gait, normal to slightly diminished strength, only intermittent positive straight leg raise testing, only intermittent decreased range of motion, and intermittent pain on palpation. Treatment notes document that the pain medications, injections, medial branch blocks, and the rhizotomy were helpful and no surgery was definitively recommended. While the evidence documents some pain, the relatively mild and stable physical examinations are inconsistent with the claimant's description of pain of debilitating severity.Tr. at 724-25.
The ALJ stated she had considered Plaintiff's subjective complaints in finding that she was "capable of performing work at no more than the sedentary exertional level." Tr. at 725. She noted Plaintiff's statements describing her symptoms to Dr. Richardson, Dr. Poletti, Dr. Netherton, Dr. Rojugbokan, PA Blease, and PA Livengood. Tr. at 725-31, 733-34. She acknowledged Plaintiff's allegations as to actions that worsened and reduced her pain. Tr. at 728. She recognized that Plaintiff had received medial branch blocks, radiofrequency rhizotomy, ESIs, Toradol injections, and medications; reported her treatment was generally helpful; and required some medication adjustments. Tr. at 728-29, 732, 733-34. She noted observations of few abnormalities during pain management visits between November 2011 and January 2013. Tr. at 732. She considered that the record contained no evidence of medical treatment between January 2013 and October 2016. Tr. at 733. Although, she "acknowledged that the claimant lacked insurance and financial resources," she cited the lack of "evidence that she sought treatment from low- or no-costs providers in the community or that she experienced any exacerbation of symptoms requiring treatment during this period of more than three years." Id. She considered the lack of treatment to be inconsistent with Plaintiff's "reports of progressively worsening symptoms." Id. The ALJ noted ER records from October 2016 revealed "only mild findings," despite a "lack of treatment for over three years prior" to the visit. Id.
The ALJ noted Plaintiff's reported ability to lift five-to-10 pounds was generally consistent with the RFC for sedentary work. Tr. at 735. She indicated Plaintiff and her physicians had reported variable time periods during which she could stand and walk. Id. However, she credited Plaintiff's complaints in limiting her "lifting, carrying, standing, and walking consistent with work activities at the sedentary exertional level." Id. She found Plaintiff's allegation of limited ability to sit was inconsistent with her reports to her providers, as she typically reported her pain was exacerbated by standing and activity, not from prolonged sitting. Id. She stated the absence of findings of atrophy supported an RFC for sitting at least six hours in an 8-hour workday. Id. She indicated she restricted Plaintiff to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling "out of consideration for her allegations that she avoids climbing stairs and has difficulty stooping." Tr. at 736. She explained she had "included limitations that she can never climb ladders, ropes, and scaffolds, and that she must avoid concentrated exposure to workplace hazards" to address Plaintiff's history of use of narcotic pain medications. Id.
Although the ALJ provided a thorough explanation for her finding that Plaintiff's allegations were not entirely consistent with the evidence of record, her explanation was afflicted by several errors. First, the ALJ concluded Plaintiff's lack of treatment was inconsistent with her complaints without engaging in the necessary inquiry as to her ability to afford treatment. A "claimant may not be penalized for failing to seek treatment she cannot afford; 'it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'" Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1985) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984). Despite acknowledging evidence that Plaintiff had financial difficulty in obtaining treatment, Tr. at 733, the ALJ failed to question her during the hearing as to efforts she had undertaken to obtain free or low-cost treatment. See generally Tr. at 760-88. She relied on a lack of evidence that Plaintiff "sought treatment from low- or no-costs providers in the community," Tr. at 733, to support a finding that her impairments were not as severe as alleged without giving Plaintiff an opportunity to address the matter. This court has generally ordered remand where ALJs used claimants' lack of treatment to discount their subjective allegations, but failed to adequately address whether the claimants could afford additional treatment. See Sox v. Astrue, C/A No. 6:09-1609-KFM, 2010 WL 2746718, at *13 (D.S.C. Aug. 24, 2016) (directing the ALJ on remand to "not draw any negative inferences about the plaintiff's symptoms and their functional effects from her irregular medical visits without first considering her explanation and the evidence that supports it"); Dozier v. Colvin, C/A No. 1:14-29-DCN, 2015 WL 4726949, at *4 (D.S.C. Aug. 10, 2015) (finding the ALJ erred in evaluating the plaintiff's subjective allegations where he noted there were low cost agencies that could provide treatment without making specific factual findings as to the sources available to her and whether her failure to seek additional treatment was based on her alleged inability to pay); Gadsden v. Colvin, C/A No. 4:12-2530-DCN, 2014 WL 368216, at *4 (D.S.C. Feb. 3, 2014) (finding remand was warranted because the ALJ's analysis of the plaintiff's credibility relied heavily on her limited medical treatment history without adequately addressing whether she could afford to pay for other medical treatment). In light of the foregoing, remand is necessary for the ALJ to obtain additional evidence from Plaintiff as to her reasons for failing to obtain additional treatment and the efforts she attempted to obtain free or low-cost treatment.
Second, the ALJ concluded Plaintiff's ADLs did not support her allegations without considering the extent to which she performed them and explaining how her ADLs were consistent with the assessed RFC. "An ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them. Woods, 888 F.3d at 694 (citing Brown, 873 F.3d at 263). She must identify evidence that supports her conclusion and "build an accurate and logical bridge from [that] evidence to [her] conclusion." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). A review of Plaintiff's testimony from her four hearings reflects many qualifiers as to her ability to perform specific ADLs. During the May 6, 2010 hearing, Plaintiff testified she attempted to sweep her kitchen floor, but could not complete the task because of pain. Tr. at 120. She indicated she delegated chores like sweeping, putting clothes in the washing machine and dryer, and shopping for groceries to her children. Tr. at 120, 122. She noted she sometimes felt increased pain and had to take medication and lie down after clearing dishes from the table. Tr. at 125. She estimated she drove three miles twice a week. Tr. at 126-27. She stated she no longer attended church regularly because she could not sit that long. Tr. at 127. During the October 25, 2011 hearing, Plaintiff stated she performed household chores if she was "having a pretty good day." Tr. at 89. She said she went to her son's athletic events if she was "physically able," but noted it was "not often, which [was] quite disappointing." Tr. at 90. She indicated she had been unable to make it through the first quarter the last time she had tried. Id. She admitted she was a member of a church, but stated she had not attended church in three months because of back pain and falls. Tr. at 91. She said she could sometimes cook for 20 minutes, but would subsequently take a break for 20 or 30 minutes or to lie down. Tr. at 94-95. During the August 20, 2013 hearing, Plaintiff testified she spent most of her time lying down, but would fold her blanket and wash dishes if she felt able to do so and might put away dishes and items on the counter and wipe kitchen surfaces if she was having a good day. Tr. at 49-50, 69-70. At the most recent hearing, Plaintiff testified she no longer drove. Tr. at 767. She stated that on a good day, she could prepare her breakfast, eat, and shower without having to take a break every 10 minutes and on a bad day, she would put eye covers on and lie in complete darkness. Tr. at 773. She indicated she performed chores like cooking breakfast, washing dishes, making the bed, and fixing the sofa covering on good days. Tr. at 774, 776.
The ALJ's explanation of her consideration of Plaintiff's ADLs excludes reference to her reported difficulties and limited ability to perform tasks. Furthermore, even if we are to accept the ALJ's characterization of Plaintiff's ADLs, she failed to explain how those ADLs were consistent with the assessed RFC and inconsistent with Plaintiff's allegations that she was unable to sit or stand for long periods, required frequent breaks, and was better able to perform ADLs on good, as opposed to bad days. See Brown, 873 F.3d at 263 (indicating the ALJ erred in failing to explain "how those particular activities—or any activities depicted by [the plaintiff]—showed that he could persist through an eight-hour workday").
Finally, the ALJ mischaracterized Plaintiff's treatment as conservative, despite her undertaking of all available treatment options she could afford. In Lewis, 858 F.3d at 868, the court found the ALJ's characterization of the plaintiff's treatment record as "conservative" was "difficult to reconcile with the record." Unlike Lewis, Plaintiff did not "endure[] multiple surgeries," but, similar to Lewis, she was prescribed "powerful analgesics," and underwent nerve blocks and radiofrequency ablation. See id. at 869. While Lewis underwent an ESI, see id., Plaintiff underwent at least 12 ESIs in efforts to reduce her pain. See Tr. at 534, 536, 537, 538, 540, 547, 553, 554, 617, 624, 625, 626. Dr. Richardson also attempted an IDET procedure, but was unable to proceed because of anatomical abnormalities. Tr. at 544-45. Given the variety and extent of Plaintiff's treatment history, the ALJ's characterization of it as conservative is unsupported.
For the foregoing reasons, the undersigned recommends the court find substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective allegations.
3. Remand for Award of Benefits
Plaintiff requests the court remand the case for an award of benefits. [ECF No. 12 at 26-27]. She points out she applied for benefits more than 10 years ago and has attended four hearings before three ALJs. Id. at 27.
The Commissioner maintains that substantial evidence supports the ALJ's decision, but argues that, should the court disagree, the appropriate remedy is remand, not reversal. [ECF No. 14 at 35 n.11].
"Whether to reverse and remand for an award of benefit or remand for a new hearing rests within the sound discretion of the district court." Smith v. Astrue, C/A No. 10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)). "The Fourth Circuit has explained that outright reversal—without remand for further consideration—is appropriate under sentence four 'where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose'" and "where a claimant has presented clear and convincing evidence that he is entitled to benefits." Goodwine v. Colvin, No. 3:12-2107-DCN, 2014 WL 692913, at *8 (D.S.C. Feb. 21, 2014) (citing Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974); Veeney ex rel. Strother v. Sullivan, 973 F.3d 326, 333 (4th Cir. 1992). An award of benefits is appropriate when "a remand would only delay the receipt of benefits while serving no useful purpose, or a substantial amount of time has already been consumed." Davis v. Astrue, C/A No. 07-1621-JFA, 2008 WL 1826493, at *5 (D.S.C. Apr. 23, 2008) (citing Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 19982)). "On the other hand, remand is appropriate 'where additional administrative proceedings could remedy defects . . . .'" Id. (quoting Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).
Plaintiff filed this action in July 2008, nearly 12 years ago. It has undisputedly consumed a substantial amount of time, and that factor weighs in favor of remand for an award of benefits. However, the undersigned shares the ALJ's concern as to Plaintiff's lack of treatment after January 2013. Therefore, it appears additional administrative proceedings are necessary to determine the treatment Plaintiff received after January 2013, her reasons for failing to obtain regular medical treatment, and the efforts she undertook, if any, to avail herself of free or low-cost medical treatment. It might also be necessary for the ALJ to refer Plaintiff for a consultative examination to assess her impairments and limitations and to obtain testimony from a medical expert. III. Conclusion and Recommendation
If subsequent records reflect improvement in Plaintiff's impairments and symptoms, it may be reasonable for the ALJ to consider a closed period of disability. "A claimant may be entitled to a closed period of disability if the evidence shows he or she was disabled or blind for a continuous period of not less than 12 months, but based on the evidence is no longer disabled or blind at the time of adjudication." Soc. Sec. Admin. Program Operations Manual Sys., § DI 25510.001. "The ALJ is required to consider a closed period of disability if evidence in the record supports a finding that the person is disabled for a period of not less than twelve months." Rosales v. Colvin, 2013 WL 1410387, at *4 (D. Ariz. Apr. 8, 2013); accord Reynoso v. Astrue, C/A No. 10-4604-JEM, 2011 WL 2554210, at *3 (C.D. Cal. Jun. 27, 2011); Johnson v. Astrue, C/A No. 07-7263, 2008 WL 510230, at *4 (C.D. Cal. Dec. 2, 2008).
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 27, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).